Abstract

Looking back on the history of same-sex marriage legislation, it is easy to see patterns of compromise and nuanced argumentation about the relationship between equal marriage recognition for same-sex couples and the rights of religious objectors. This story of deliberation and fine-tuned balancing was not naturally baked into the same-sex marriage movement. Early on in the same-sex marriage movement, some same-sex marriage advocates urged state lawmakers not to allow anyone, other than clergy members, to step aside from facilitating same-sex marriages. Other equal marriage proponents received religious exemptions with a collective shrug, believing them to be redundant or unnecessary.

Same-sex marriage opponents made claims that marriage equality would run roughshod over religious liberty. Consequently, they argued, there was no choice but to oppose same-sex marriage on the merits. They labeled same-sex marriage a “nightmare for religious liberty,” and maintained that same-sex marriage recognition and religious liberty are “fundamentally at odds.”

In this symposium article, we argue that same-sex marriage recognition and religious liberty need not be fundamentally at odds. We examine the value of religious liberty accommodations for both the LGBT community and religious objectors to same-sex marriage, and trace the iterations of same-sex marriage bills to highlight the importance of robust religious protections. Here, we illustrate that bills adopting an emerging core of standard accommodations tended to succeed where minimalistic bills failed. And while the Supreme Court has removed marriage equality from the legislative process in Obergefell v. Hodges, we predict these issues will continue to hold currency as more states contemplate enacting anti-discrimination protections for LGBT persons.

Wilson, Robin Fretwell and Kreis, Anthony Michael, Embracing Compromise: Marriage Equality and Religious Liberty in the Political Process (October 1, 2014). Georgetown Journal of Gender and the Law, Vol. 15, p. 485, 2014; University of Illinois College of Law Legal Studies Research Paper No. 15-37. Available at SSRN: https://ssrn.com/abstract=2640528

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